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The judgment in Vardy v Rooney [2022] EWHC 2017 can be foundHERE.
The case was a game of two other halves – Coleen Rooney, wife of Wayne, and Rebekah Vardy, wife of Jamie. Steyn J’s judgment left Rooney and her legal team punching the air and dousing themselves in champagne whilst Vardy cradled herself at the side of the pitch, reflecting on the moment she stepped up to take the stand, a moment that will give her nightmares for years. To be clear – I am speaking metaphorically, that didn’t actually happen. If there is one thing reading this judgment has taught me, it is not to make assumptions about whether you are going to be sued for libel, as some people have a really surprising take on the wisdom of doing that.
Leigh & Ors v (1) The Commissioner of Police of the Metropolis and (2) Secretary of State for Health and Social Care (Interested Party)[2022] EWHC 527
A year after the kidnap, rape and murder of Sarah Everard by serving Metropolitan Police officer Wayne Couzens, the Divisional Court has given its judgment on the MPS response to the proposed vigil for Ms Everard organised by #ReclaimTheseStreets on Clapham Common, near where she was last seen alive.
The aim of the vigil was to highlight risks to women’s safety and to campaign for a change in attitudes and responses to violence against women. However, it was at a time when Regulations imposed during the Covid-19 pandemic prohibited a gathering of more than 30 persons in a public outdoor place in a Tier 4 area such as London.
MPS would not sanction the plan for the vigil and it was cancelled (as discussed here). The Claimants alleged that this was because the Met had unlawfully thwarted the plan. The Court agreed.
The judgment is a comprehensive victory for the Claimants, hailed by them as a “victory for women” and an “absolute vindication”. It is also a landmark decision in the context of debate as to the impact of the Covid regulations on the fundamental rights and freedoms enshrined in primary legislation pursuant to the HRA. It contains a granular analysis of the requirements of the proportionality assessment to be undertaken in such cases. It has particular resonance given controversial changes to the way police are able to control protests currently being debated in parliament as part of the Police, Crime, Sentencing and Courts Bill.
Sarah Everard, a 33 year old woman living in London, was walking home from a friend’s house at around 9pm on Wednesday 3rd March 2021 when she disappeared without trace. In the days that followed, public appeals for information and press coverage ensured that the case was widely discussed. A profound sense of unease and desperation for her to be found alive was voiced by many, before the worst news was confirmed. Shockingly, a serving Metropolitan Police Officer has been charged with her kidnap and murder.
The most important thing to say about the case is contained in the statement of Sarah Everard’s family. They describe the sort of person that she was and what she meant to them.
One former colleague of Sarah Everard sharing her own memories of her added
she’s a real person, not some hanger on which to display your views about women.
But the case has prompted a wider discussion about how the risk of violence and harassment against women going about their ordinary business has been normalised and accepted as part of everyday life, such that calculations as to how to minimise that risk have become second nature to many. The MP Jess Phillips, speaking during a parliamentary debate to mark International Women’s Day said: “Killed women are not vanishingly rare. Killed women are common”,before reading the names of every woman killed in the UK in the last year where a man has been convicted or charged as the main perpetrator, that exercise taking more than four minutes.
Against this background, an organisation called “Reclaim These Streets” (“RTS”) stated that they wished to “channel the collective grief, outrage and sadness in our community” and decided to hold “a short gathering on Clapham Common, centred around a minute of silence to remember Sarah Everard and all women lost to violence”.The event was described as a “socially distanced vigil” having regard to the restrictions currently in place due to the Covid-19 pandemic. It was scheduled to take place at 6pm on Saturday 13 March 2021, close to where Sarah Everard was last seen alive.
Inside the main hall of the Royal Courts of Justice. The Court of Appeal undertook a detailed consideration of article 2 this year.
This three-part extended analysis discusses the important recent authorities on article 2 ECHR in the context of the provision of healthcare. Part 1 examined the leading case of Lopes de Sousa and part 2 considered how it has been interpreted and applied. In this final part, the latest decision of the Court of Appeal this year will be analysed and the overall trend in the law explained.
The two lines of Strasbourg authority considered in the two Fernandes cases are extensively cited by the Court of Appeal in the decision in Maguire. This case concerned the death of a patient with Down’s syndrome, learning difficulties and limited mobility who had lived in a residential care home and was subject to deprivation of liberty safeguards. In the days prior to her death she had been ill but had not cooperated with attempts to take her to hospital and the decision was taken to care for her at the home overnight. She deteriorated and was admitted to hospital where she later died. The cause was a perforated gastric ulcer, peritonitis and pneumonia.
The claimant argued that the circumstances of the death engaged the procedural obligation to hold an enhanced inquest under article 2. Whilst agreeing initially, and holding a jury inquest, the Coroner subsequently revisited his decision in light of the Divisional Court’s judgment in Parkinson. Having heard the evidence, he did not consider there was any arguable breach of the substantive operational duty under article 2 and hence the procedural duty was not triggered. A conclusion of natural causes was recorded with a short narrative description of events.
This three-part extended analysis discusses the important recent authorities on article 2 ECHR in the context of the provision of healthcare. Part 1 examined the leading case of Lopes de Sousa. In this part, the way that this case has been addressed will be considered.
Criticism of the approach in Lopes de Sousa
It will be apparent that the requirements for a breach of the substantive obligation under article 2 set by the Grand Chamber overlap to some extent, and it is difficult to understand how all the factors identified in denial of treatment cases can be cumulatively required, as opposed to being alternative bases for a violation in some instances. On any view, however, the overall effect is extremely restrictive and has been criticised as such, not least in a powerfully worded dissenting judgment from Judge Pinto de Albuquerque:
For a State to avoid international-law responsibility under the Convention, it is not sufficient for health-care activities to be circumscribed by a proper legislative, administrative and regulatory framework and for a supervisory mechanism to oversee the implementation of this framework, as the Court held in Powell […] By evading the question of the specific protection of the individual right of each patient and instead protecting health professionals in an untouchable legal bubble, Powell renders the Convention protection illusory for patients. Powell seeks a Convention that is for the few, the health professionals and their insurance companies, not for the many, the patients. This must be rejected outright. [64]
[…]
This case could have been a tipping point. The Grand Chamber did not want it to be that way. I regret that, by rejecting a purposive and principled reading of the Convention, the Court did not deliver full justice [94]
Judge Serghides, also dissenting, but in less trenchant terms, regretted the Grand Chamber had “missed a good opportunity to follow Elena Cojocaru and to abandon the Powell principle for good or distinguish the present case from that old decision.” [15]
This three-part extended analysis will discuss the important recent authorities on article 2 ECHR in the context of the provision of healthcare and identify important trends in the development of the law in this area.
Where article 2 of the Convention is invoked to allege inadequate provision of healthcare by the state, recent Strasbourg and domestic authority suggest an increasingly restrictive approach.
In a pithy parting shot to the Home Secretary, Lady Hale has given the unanimous judgment of the Supreme Court on the question of whether a person subject to a home curfew under immigration powers had been falsely imprisoned at common law and whether that concept should now be aligned with the concept of deprivation of liberty in article 5 of the ECHR. The Court decided the case against the defendant, as did every court below (the Blog covered the Court of Appeal’s decision here). The defendant had been required to pay the claimant £4,000.
False imprisonment at common law
The opening sentence sets the scene:
The right to physical liberty was highly prized and protected by the common law long before the United Kingdom became party to the European Convention on Human Rights.
The claimant had been subject to an overnight curfew, enforced by way of monitoring equipment and an electronic tag, under paragraph 2(5) of Schedule 3 of the Immigration Act 1971.
In two related judgments, Lieven J considered an application made by a Hospital Trust to withdraw treatment from a child receiving mechanical ventilation to keep him alive and an application for anonymity on behalf of his treating clinicians. The Trust succeeded in both.The decision has been upheld by the Court of Appeal.
The application to withdraw treatment was opposed by the parents. As always in such cases the circumstances were tragic and emotions ran high, which provides some context to the anonymity application.
The Chief Coroner has issued guidance following the judgment of the Divisional Court in R (Adath Yisroel Burial Society) v Senior Coroner for Inner North London [2018] EWHC 969 (Admin) (“the AYBS Case”). The new Guidance No.28 can be found here.
The Divisional Court has ruled that the Senior Coroner for Inner North London acted unlawfully in adopting a policy that resulted in Jewish and Muslim families facing delays in the burials of family members, contrary to their religious beliefs. The policy was held to amount to an unlawful fetter upon her discretion, and also to be irrational, to breach Articles 9 and 14 of the ECHR and to amount to indirect discrimination contrary to the Equality Act 2010 (“EQA”).
No death will be prioritised in any way over any other because of the religion of the deceased or family, either by the coroner’s officer’s or coroners.
It has resulted in a blanket refusal of requests for expedition in circumstances where a religion stipulates that burial must take place within a short period of death. Such requests have arisen in cases where the family is waiting for the coroner to decide whether a post mortem examination is required.
R (Khan) v Secretary Of State For Foreign & Commonwealth Affairs [2012] EWHC 3728 (Admin) (21 December 2012) – Read judgment
In this unsuccessful application for permission to apply for judicial review, the Claimant sought to challenge the Defendant’s reported policy of permitting GCHQ employees to pass intelligence to the US for the purposes of drone strikes in Pakistan. The Claimant’s father was killed during such an attack in March 2011.
The Claimant alleged that by assisting US agents with drone strikes, GCHQ employees were at risk of becoming secondary parties to murder under the criminal law of England and Wales and of conduct ancillary to war crimes or crimes against humanity contrary to international law. The Claimant sought declaratory relief to that effect and also sought a declaration that the Defendant should publish a policy addressing the circumstances in which such intelligence could be lawfully disseminated. [paragraph 6]
“Yes, come to the library! Browse and borrow, and help make sure it’ll still be here tomorrow…” Thus concludes “Library poem”, penned by Children’s Laureate and Gruffalo creator Julia Donaldson, the latest high profile recruit to the campaign against planned library closures.
There have been a number of developments since we last blogged on this issue:
First, in R(Bailey And Others) V Brent London Borough Council & All Souls College (Interested Party) & Ehrc (Intervener) [2011] Ewca Civ 1586, The appellants failed to overturnthe dismissal of their application for judicial review of a local authority’s decision to close half its public libraries. See previous post here. The Court of Appeal dismissed the appeal on every ground, noting that the local authority’s decision to reduce its expenditure on public services was primarily one for it to make as a democratically elected body. Given the scale of the spending reductions required the decision was not unlawful.
R (Green and others) v GLOUCESTERSHIRE COUNTY COUNCIL & SOMERSET COUNTY COUNCIL [2011] EWHC 2687 (Admin) – Read judgment
In the administrative court, the decisions of two local authorities to withdraw funding for library services were held to be unlawful.
The court held that the withdrawal of a local library might indirectly discriminate against people with physical disabilities, women and the elderly. Both councils had purported to carry out equality impact assessments but the mere fact that such an assessment had been conducted did not demonstrate that due regard had been given to the public sector equality duty.
Updated | Bailey & Others v London Borough of Brent Council [2011] EWHC 2572 (Admin) – Read judgment
Every Wednesday my daughter looks forward to the arrival of the mobile library at her nursery. Two by two the children go into the little world of books and emerge holding a new story they have chosen for themselves.
Not for long. Despite the well-documented advantages of exposing children to the joys of reading at an early age – before the attractions of TV, video games and looting shops take hold – library services across the land are being targeted for cuts.
The duty to provide library services for children was one of the key arguments advanced by campaigners in Brent challenging the council’s decision to close 6 of its 12 libraries. Reliance was placed upon section 7 of the Public Libraries and Museums Act 1964. This requires local authorities to provide a comprehensive and efficient library service.
Rahman, R (on the application of Birmingham City Council) [2011] EWHC 944 (Admin) (31st March 2011) – read judgment
The Prime Minister recently called upon immigrant communities to integrate more fully in British Society, criticising in particular those who fail to learn English.
But three longstanding residents of Birmingham who communicate poorly in English and rely upon legal entitlement advice centres to provide services in their mother tongue, have successfully argued that the Defendant Council unlawfully failed to discharge its Public Sector Equality Duty in ceasing to fund the centres. Two further Claimants, with disabilities, also succeeded in their challenge to the Council’s decision to cease funding another centre that was providing free assistance in welfare benefit appeals.
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The Divisional Court has ruled that the Senior Coroner for Inner North London acted unlawfully in adopting a policy that resulted in Jewish and Muslim families facing delays in the burials of family members, contrary to their religious beliefs. The policy was held to amount to an unlawful fetter upon her discretion, and also to be irrational, to breach Articles 9 and 14 of the ECHR and to amount to indirect discrimination contrary to the Equality Act 2010 (“EQA”).
R (Khan) v Secretary Of State For Foreign & Commonwealth Affairs [2012] EWHC 3728 (Admin) (21 December 2012) – 
“Yes, come to the library! Browse and borrow, and help make sure it’ll still be here tomorrow…” Thus concludes “Library poem”, penned by Children’s Laureate and Gruffalo creator 
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